dismissed EB-1A Case: Athletics

PUBLICCOPy
IdentifYingdatadeletedto
prev~nt clearly rJnvvarranted
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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE: LIN 06 01552794 NEBRASKA SERVICE CENTER Date: OCT 1 1 Z007
INRE:
PETITION:
Petitioner:
Beneficiary:
Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section
203(b)(1)(A) of the Immigration and Nationality Act, 8 U.S.c. § 1153(b)(l)(A)
ON BEHALF OF PETITIONER:
INSTRUCTIONS:
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to
the office that originally decided your case. Any further inquiry must be made to that office.
~/7-~Robert P. Wiemann, Chief
f'- Administrative Appeals Office
www.uscis.gov
LIN 06 01552794
Page 2
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Nebraska Service
Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.
The petitioner seeks classification as an employment-based immigrant pursuant to section 203(b)(1)(A) of the
Immigration and Nationality Act (the Act), 8 U.S.c. § 1153(b)(l)(A), as an alien of extraordinary ability in
athletics. The director determined the petitioner had not established the sustained national or international
acclaim necessary to qualify for classification as an alien of extraordinary ability. The director also determined
the petitioner had not submitted clear evidence that she would continue work in her area of expertise in the United
States.
On appeal, counsel argues that the petitioner meets at least three of the regulatory criteria at 8 C.F.R.
§ 204.5(h)(3) and that the director improperly characterized her area of expertise.
Section 203(b) of the Act states, in pertinent part, that:
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants who are aliens
described in any of the following subparagraphs (A) through (C):
(A) Aliens with extraordinary ability. -- An alien is described in this subparagraph if --
(i) the alien has extraordinary ability in the sciences, arts, education, business, or
athletics which has been demonstrated by sustained national or international acclaim
and whose achievements have been recognized in the field through extensive
documentation,
(ii) the alien seeks to enter the United States to continue work in the area of
extraordinary ability, and
(iii) the alien's entry into the United States will substantially benefit prospectively
the United States.
Citizenship and Immigration Services (CIS) and legacy Immigration and Naturalization Service (INS) have
consistently recognized that Congress intended to set a very high standard for individuals seeking immigrant
visas as aliens of extraordinary ability. See 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). As used in this
section, the term "extraordinary ability" means a level of expertise indicating that the individual is one of that
small percentage who have risen to the very top of the field of endeavor. 8 C.F.R. § 204.5(h)(2). The specific
requirements for supporting documents to establish that an alien has sustained national or international
acclaim and recognition in his or her field of expertise are set forth in the regulation at 8 C.F .R. § 204.5(h)(3).
The relevant criteria will be addressed below. It should be reiterated, however, that the petitioner must show
that she has earned sustained national or international acclaim at the very top level.
This petition, filed on October 20, 2005, seeks to classify the petitioner as an alien with extraordinary ability
as a "Synchr0tlized Swimming Specialist." At the time of filing, the petitioner was competing and coaching
for the AquaSprites synchronized swimming team in Des Plaines, Illinois. The regulation at 8 C.F.R.
LIN 06 01552794
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§ 204.5(h)(3) indicates that an alien can establish sustained national or international acclaim through evidence
of a one-time achievement (that is, a major, internationally recognized award). Barring the alien's receipt of
such an award, the regulation outlines ten criteria, at least three of which must be satisfied for an alien to
establish the sustained acclaim necessary to qualifY as an alien of extraordinary ability. A petitioner,
however, cannot establish eligibility for this classification merely by submitting evidence that simply relates
to at least three criteria at 8 C.F.R. § 204.5(h)(3). In determining whether the petitioner meets a specific
criterion, the evidence itself must be evaluated in terms of whether it is indicative of or consistent with
sustained national or international acclaim. A lower evidentiary standard would not be consistent with the
regulatory definition of "extraordinary ability" as "a level of expertise indicating that the individual is one of
that small percentage who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). The
petitioner has submitted evidence pertaining to the following criteria.
Documentation ofthe alien's receipt oflesser nationally or internationally recognized prizes or
awards for excellence in the field ofendeavor.
The petitioner submitted photographs of the front and back of synchronized swimming medals she earned in
Bulgaria in the 1980s. For example, the petitioner received a "Gold Medal for National Competition from the
Bulgarian Sports Federation - 1988" and a "Silver Medal for National Synchronized Swimming
Championship of Bulgaria - 1985."
An August 30, 2005 letter of support from xecutive Director, United States Synchronized
Swimming (USSS),1 states: "[The petitioner] has been internationally ranked, and has participated in
numerous international and European synchronized swimming championships. As a member of the Bulgarian
National Team, she is one of the best synchronized swimmers in her homeland."
A June 5, 2006 letter of support from ~esident and Chief Executive Officer, International
Swimming Hall of Fame, states:
[The petitioner] was a member of the first ever Bulgarian National Synchronized Swimming
Team. . .. Among her numerous achievements, her team won the Bulgarian National
Championship for three consecutive years and she placed in the top three as a solo or duet
performer four years in a row.
As a member of the Bulgarian National Team, [the petitioner] is one of the best synchronized
swimmers in her homeland, and a top three finish in an event at the World Championships ranks
her as one of the best in the World.
letter does not identify the date of the petitioner's top three finish in the World Championships
or the name of the specific synchronized swimming event in which she competed, nor is there first-hand
1 According to s letter, USSS "is the National Governing Body for the Olympic sport of
synchronized swimming in the United States, appointed as such by the United States Olympic Committee."
LIN 06 01552794
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evidence, such as a medal or official results from the International Swimming Federation (FINA),2 showing
that she received a prize or an award at the World Championships. In fact, the record includes no evidence
showing that the petitioner has won any nationally or internationally recognized awards as a member of the
Bulgarian National Team subsequent to 1990. The absence of such awards in the 15 years immediately
preceding the petition's filing date is not consistent with sustained national or international acclaim as
required by the section 203(b)(l)(A) of the Act and the regulation at 8 C.F.R. § 204.5(h)(3). The director's
decision noted that the letters of recommendation submitted by the petitioner's associates "indicate that [she]
has 'retired' from competing." For example, a letter of support from of the Bulgarian
National Sport Academy and the petitioner's former Bulgarian National Team coach for synchronized
swimming, states: "Now that [the petitioner] has retired from competition, [she] has become a well­
recognized trainer . . . ." [Emphasis added] Another letter from "Senior Level Synchronized
Swimming Competitor," states: "[The petitioner] was an accomplished competitor before she retired from
competitive swimming." [Emphasis added] Further, a letter from Coach, AquaSprites
and AquaSprites Masters Swim Clubs, refers to the petitioner as a "former competitor."
On appeal, counsel states: "The Director's decision is ... flawed in that it contains conclusions and
assumptions without citing any specific evidence in the record. For example, the Director states that there is
evidence that [the petitioner] is 'retired' from competition.. " In fact, none of the letters or evidence state
that she is retired." Counsel's observation regarding the director's decision is incorrect as the director's
conclusion was based on the statements contained in the letters from Professor Dimitrova and,,-
Nevertheless, we acknowledge that the petitioner has competed at the "Masters" level in synchronized
swimming since coming to the United States. The petitioner submitted evidence of her receipt of various
awards as a member of the AquaSprites "Masters" synchronized swimming team in Des Plaines, Illinois from
2003 to 2005. The petitioner's evidence included photographs of various medals and ribbons from U.S.
Masters Synchronized Swimming Championships, but the photographic evidence did not include information
identifying the specific dates of the awards shown or the event categories in which she earned them. Further,
the record includes no evidence showing the number of Masters participants who competed in the specific age
group event categories in which the petitioner received an award. We note here that it is typical for nationally
recognized competitions to distribute programs listing the order of events and the names of the participating
athletes. At a competition's conclusion, official results are usually provided indicating how each participant
performed in relation to the other contestants in his or her competitive event. For example, the record
includes results for the "2004 ESYNCHRO 16-17/18-19 AGE GROUP" championships in Indianapolis,
Indiana, in which the petitioner did not compete. The record, however, includes no such results for any of the
petitioner's Masters synchronized swimming competitions in the United States. The burden is on the
petitioner to establish that her "Masters" awards constitute nationally or internationally recognized prizes or
awards for excellence in synchronized swimming and that her receipt of such awards is consistent with an
athlete who has "risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). We find that the
petitioner's evidence does not meet these requirements. For example, the petitioner submitted a 2003 article
printed in Pioneer Press, a local newspaper, stating:
2 The August 30, 2005 letter of support from _ identifies FINA as "the International Federation
for the aquatic Olympic sports."
LIN 06 015 52794
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Members of the Lattof YMCA AquaSprite Masters synchronized swimming team took fIrst place
honors at the national United States Masters Synchronized Swimming Championships held
recently in Cleveland. Members of the team were [fIve other individuals] and [the petitioner] of
Mount Prospect....
The AquaSprites also earned a number of other honors in the 291b annual competition. • took
gold among grand masters in solo and technical solo competition in the 70-79 age group. Moyer
took fIrst place in C fIgure competition in the 40-49 age group, while teammates Ramberg and
Schalk took sevnth [sic] and ninth respectively.
In other technical competition, Grzeszczak placed fIfth in B fIgures in 40-49; [the petitioner]
placed fIfth in C fIgure competition in the 30-39 group; and Seguine took Bib in the 40-49
technical routines.
The 40-49 age group trio of Moyer, Seguine and [the petitioner] earned second place. In 40-49
solo competition, Moyer placed second and Seguine claimed sixth. In addition, [the petitioner]
placed second among grand master 30-39 soloists.
The competition was held Oct. 23-26 at Cleveland State University. Approximately 260
swimmers ages 21 to 85 competed at the event, which combines the athleticism of swimming and
gymnastics with the artistry of music and choreography.
The AquaSprite Masters practice twice weekly and new members are welcome. No prior
synchronized swim experience is required.
Based on information contained in the preceding article, it appears that the petitioner's competitors were
limited to those age 30 and over, that she competed in both the 30-39 and 40-49 age groups although she was
age 34 at the time of the competition, and that "[n]o prior synchronized swim experience is required" to
participate in the Masters competitive program. Further, according to a "2003 USSS Calendar of Events"
submitted by the petitioner, in addition to the U.S. Masters Synchronized Swimming Championships reserved
for older recreational competitors, the following competitions also took place in 2003: 2004 Olympic Team
Trials, Junior and Senior Team Trials Phase III, U.s. Collegiate Synchronized Swimming Championships,
U.S. National Synchronized Swimming Championships, United Airlines Open, FINA World Championships,
and the Pan American Games. Unlike victories at competitions such as the 2004 Olympic Team Trials or the
U.S. National Synchronized Swimming Championships, the petitioner's age-based "Masters" awards at
competitions such as the U.S. Masters Synchronized Swimming Championships are not nationally recognized
awards for excellence consistent with her being "one of that small percentage who have risen to the very top
of the field of endeavor." 8 C.F.R. § 204.5(h)(2). There is no evidence that the petitioner faced competition
open to her entire fIeld of endeavor rather than competition limited to recreational swimmers over the age of
30. Nor is there evidence showing the number of swimmers she outperformed in her age group events in
order to earn her awards.
Thus, the petitioner has not established that her receipt of age-group specific Masters synchronized swimming
awards in the United States meets this criterion, nor is there evidence showing that she has received any
LIN 06 01552794
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nationally recognized awards in Bulgaria subsequent to 1990. The fact that the petitioner has not won any
nationally recognized awards open to all ages and skills in her field (rather than limited to recreational
competitors age 30 and over) in recent years indicates that the acclaim she may have earned as a synchronized
swimmer at the top national level in Bulgaria has not been sustained.
In light of the above, the petitioner has not established that she meets this criterion.
Documentation ofthe alien's membership in associations in the field for which classification
is sought, which require outstanding achievements oftheir members, as judged by recognized
national or international experts in their disciplines orfields.
The petitioner submitted her membership card for Synchro Swimming USA. In a June 7, 2006 letter
responding to the director's request for evidence, counsel asserts that the petitioner has also "been an active
member of the International Association of 'Women in Science.'" The record, however, includes no evidence
of the petitioner's membership in the latter association. Without documentary evidence to support the claim,
the assertions of counsel will not satisfy the petitioner's burden of proof. The unsupported assertions of
counsel do not constitute evidence. Matter ofObaigbena, 19 I&N Dec. 533,534 n.2 (BIA 1988); Matter of
Laureano, 19 I&N Dec. 1,3 n.2 (BIA 1983); Matter ofRamirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
Further, as the petitioner's field is athletics (synchronized swimming), there is no indication that the
International Association of Women in Science is an association "in the field for which classification is
sought" as required by the plain language of this regulatory criterion. Finally, there is no evidence (such as
membership bylaws or official admission requirements) demonstrating that admission to membership in the
preceding organizations required outstanding achievements, as judged by recognized national or international
experts in the petitioner's or an allied field. As such, the petitioner has not established that she meets this
criterion.
Published material about the alien in professional or major trade publications or other major
media, relating to the aliens work in thefieldfor which classification is sought. Such evidence
shall include the title, date, and author ofthe material, and any necessary translation.
In general, in order for published material to meet this criterion, it must be primarily about the petitioner and, as
stated in the regulations, be printed in professional or major trade publications or other major media. To qualify
as major media, the publication should have significantnational or international distribution. An alien would not
earn acclaim at the national or international level from a local publication. Some newspapers, such as the New
York Times, nominally serve a particular localitybut would qualify as major media because of significant national
distribution,unlike small local community papers.3
In addressing the petitioner's evidence for this criterion, the director's decision stated:
3 Even with nationally-circulated newspapers, consideration must be given to the placement of the article. For
example, an article that appears in the Washington Post, but in a section that is distributed only in Fairfax
County, Virginia, for instance, cannot serve to spread an individual's reputation outside of that county.
LIN 06 01552794
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The record contains several articles which appear to have originated from newspapers reporting
results of swim meets. None of the articles was primarily about the petitioner. Most simply
mentioned the petitioner in conjunction with other competitors and their results, and some did not
mention the petitioner at all. . .. Articles in local or regional newspapers show a small measure
of acclaim but would not fulfill this criterion, as such publications are not major publications with
national or international distribution.
We concur with the director's findings. The petitioner does not challenge the above findings on appeal. The
petitioner has not established that the articles she submitted were primarily about her and that they appeared
in professional or major trade publications or other major media.
In light of the above, the petitioner has not established that she meets this criterion.
Evidence ofthe alien sparticipation, either individually or on a panel, as a judge ofthe work of
others in the same or an allied field ofspecification for which classification is sought.
The regulation at 8 C.F.R. § 204.5(h)(3) provides that "[a] petition for an alien of extraordinary ability must
be accompanied by evidence that the alien has sustained national or international acclaim and that his or her
achievements have been recognized in the field of expertise." Evidence of the petitioner's participation as a
judge must be evaluated in terms of these requirements. The weight given to evidence submitted to fulfill the
criterion at 8 C.F.R. § 204.5(h)(3)(iv), therefore, depends on the extent to which such evidence demonstrates,
reflects, or is consistent with sustained national or international acclaim at the very top of the alien's field of
endeavor. A lower evidentiary standard would not be consistent with the regulatory definition of
"extraordinary ability" as "a level of expertise indicating that the individual is one of that small percentage
who have risen to the very top of the field of endeavor." 8 C.F.R. § 204.5(h)(2). For example, judging a
national competition for top athletes is of far greater probative value than judging a local or regional competition
for recreational youth participants.
In addressing the petitioner's evidence for this criterion, the director's decision stated:
The petitioner initially claimed this criterion, but did not provide any clear or specific evidence
regarding participation as a judge. Several of the witness letters make vague allusions to
participation as a judge of the work of others, but none list any specific events nor were they
accompanied by documentary evidence of any such participation. The record was also absent
informationregarding any criteria for selection as a judge.
The petitioner was requested to document any such participation along with the criteria for selection.
In response, the petitioner submitted two statements from different organizations which state ... that
the petitioner "has been invited to judge numerous events since coming here including the 2005
Synchro Meet and 2005 Association Regional B-NZ Synchronized swimming championships."
No information was provided regarding either of these meets, and it is not clear whether these
meets were youth, junior, amateur, professional, or other level events. Judging amateur or youth
events would generally not be commensurate with this criterion.
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We concur with the director's finding that "vague" witness statements indicating that the petitioner served as a
judge cannot serve to meet this criterion. The benefit sought in the present matter is not the type for which
documentation is typically unavailable and the statute specifically requires "extensive documentation" to establish
eligibility. See section 203(b)(I)(A)(i) of the Act; 8 U.S.c. § 1153(b)(1)(A)(i). Further, the commentary for the
proposed regulations implementing this statute provide that the "intent of Congress that a very high standard be
set for aliens of extraordinary ability is reflected in this regulation by requiring the petitioner to present more
extensive documentation than that required" for lesser classifications. 56 Fed. Reg. 30703, 30704 (July 5, 1991).
While letters of support may place the evidence for the regulatory criteria in context, they cannot serve as primary
evidence of the achievement required by each criterion.
In response to the director's request for evidence, the petitioner submitted pages 19 and 23 of what appears to be a
USSS publication. The top of page 19 states:
USA Synchro Judges
Judges as listed by Association and Rating. . .. Please check Appendix G of 2004-
2005 Official Rules for requirements for ratings.
Level I-F: Basic Figure Judge
Level II-F: Association Figure Judge
Level III-A: Association Judge
Level IV-F: Regional Figure Judge
Level V-R: Regional Judge
Level V-F: Zone Figure Judge
Level V-Z: Zone Judge
Level VI-F: National Figure Judge
Level VI-N: National Judge
Level VII-I: USSS International Judge
Level VIII: FINA, ASUA Judge
A listing of numerous individuals qualified to serve as USA Synchro judges then follows. The petitioner's name
is listed on Page 23 of this directory along with her judge's rating. The petitioner's entry identifies her rating as
"3A" which corresponds with "Level III-A: Association Judge" above. We cannot ignore that the petitioner
holds only a Level 3 rating on this eight-level judge's rating scale. Further, there is no indication that the
petitioner is qualified to judge at the regional, zone, national, or international level. This evidence shows that the
top of the petitioner's field is a level far above her own level of qualification and there is nothing to
demonstrate that her Level 3 rating is consistent with sustained national or international acclaim.
As discussed by the director, the petitioner also submitted a June 6, 2006 letter from of USSS
stating that the petitioner "has been invited to judge numerous events since coming here including the 2005
Synchro Meet and 2005 Association Regional B-NZ Synchronized swimming championships." Terry
Harper's letter states that the petitioner "has been invited to judge numerous events," but the record includes
no evidence documenting the petitioner's actual participation, either individually or on a panel, as a synchronized
swimming judge. An invitation to judge is not tantamount to "participation" as a judge. For example, there is
LIN 06 01552794
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no contemporaneous evidence of the petitioner's participation (such as judging slips, a judge's identification
badge, or an event program identifying her as a judge) in the 2005 Synchro Meet or the 2005 Association
Regional B-NZ Synchronized swimming championships. The record also lacks evidence showing the names
of the individuals evaluated by the petitioner, their level of expertise, the specific competitive categories she
judged, and significance of the competitive events in which she allegedly participated as a judge. Without
evidence of the petitioner's actual participation as a judge of the work of others in her or an allied field that is
consistent with sustained national or international acclaim, we cannot conclude that she meets this criterion.
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related
contributions ofmajor significance in thefield.
In addressing this criterion, the director's decision stated:
The petitioner did not initially claim this criterion. In response to the Service's request for
additional evidence, the petitioner now claims the criterion, but does not clearly document such
contributions. The petitioner references a letter which claims that the petitioner "helped develop
an experimental off-shoot of synchronized swimming" involving performing with dolphins for
which the petitioner "won national acclaim and a unique experience." The record lacks any
documentary evidence regarding this claimed contribution, and lacks documentation regarding
what, if any, significance this contribution has had on the field. Contributions of major
significance ought to be verifiable by objective documentary evidence in existence irrespective of
whether the filing of an immigrant petition is contemplated. Taken as a whole, including for the
reasons discussed elsewhere, the documentation is not persuasive that the petitioner's impact and
influence on the field of synchronized swimming are such that her contributions are recognized as
having major significance to the field.
We concur with the director's findings. The petitioner does not challenge the above findings on appeal.
Thus, the petitioner has not established that she meets this criterion.
Evidence ofthe display ofthe alien's work in thefield at artistic exhibitions or showcases.
The plain language of this criterion indicates that it applies to artists rather than to competitive athletes such
as the petitioner. The ten criteria in the regulations are designed to cover different areas; not every criterion
will apply to every occupation. Even if we were to accept synchronized swimming as art rather than athletics
(which we do not), there is no evidence showing that the petitioner meets this criterion.
In addressing this criterion, the director's decision stated:
The petitioner did not initially claim this criterion. In response to the Service's request for
additional evidence, the petitioner is now stating that synchronized swimming is also considered
an art form and referencing the documentation previously provided which shows that her "work
has been displayed in many places around the world." However, the record lacks specific
information regarding the venues at which the petitioner performed or any other information
documenting the significance of the exhibitions. Without such information, the record does not
LIN 06 015 52794
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adequately demonstrate that the petitioner's competition performances have been on a level
commensurate with those contemplated by these regulations.
We concur with the director's findings. The petitioner does not challenge the above findin~ on appeal.
Thus, the petitioner has not established that she meets this criterion.
Evidence that the alien has peiformed in a leading or critical role for organizations or
establishments that have a distinguished reputation.
In addressing this criterion, the director's decision stated:
The petitioner did not initially claim this criterion. In response to the Service's request for
additional evidence, the petitioner now claims that she meets this criterion by virtue of
participation on the Technical Synchronized Swimming Committee for Ligue Europeenne de
Natation (LEN) in 1992 and 1993 as well as serving on scientific panels at the National Academy
of Bulgaria. The only evidence regarding these roles was a statement from __
which briefly mentions the petitioner's involvement. It does not appear that_s in any
way affiliated with LEN or the National Academy, and therefore does not appear that he would
have first hand knowledge of the petitioner's role within either organization. Third party
attestations are insufficient to document a leading or critical role within a specific organization.
Further, the statement provided no specific information regarding the petitioner's role, and there
is nothing to show how her role was either leading or critical. Therefore, the record is insufficient
to demonstrate that the petitioner meets this criterion.
We further note that there is no evidence showing that the
letter have distinguished reputations. The petitioner does not
mgs on appeal. Thus, the petitioner has not established that she meets this
We concur with the director's findin s.
organizations identified in
challenge the director's fin
criterion.
Evidence that the alien has commanded a high salary or other significantly high remuneration
for services, in relation to others in thefield.
In addressing this criterion, the director's decision stated:
The initial submission contained a statement indicating that the petitioner is "funded through
private grants and thus far total $28,915 per year." The record contained no documentation of
such grants or other remuneration, and no information regarding the salaries or remuneration of
others in the field. The Service requested clear documentation of the petitioner's salary,
.documentation of the salaries and remuneration of others in the field, and documentation
regarding how the petitioner's remuneration is significantly high. The petitioner does not address
this criterion in her response and submits no additional evidence relating to this criterion.
Therefore, the record does not demonstrate that the petitioner has commanded a high salary or
other significantly high remuneration.
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We concur with the director's findings. The petitioner does not challenge the above findings on appeal.
Thus, the petitioner has not established that she meets this criterion.
In this case, the petitioner has failed to demonstrate receipt of a major internationally recognized award, or
that she meets at least three of the criteria at 8 C.F.R. § 204.5(h)(3). Further, there is no evidence of
achievements or recognition (during the years immediately preceding the filing of the petition) showing that
the petitioner has sustained national or international acclaim as a synchronized swimmer in recent years.
On appeal, counsel notes that the petitioner is the beneficiary of an approved 0-1 nonimmigrant visa filed in her
behalf in 2002. While CIS has approved one 0-1 nonimmigrant visa petition filed on behalf of the petitioner, that
prior approval does not preclude CIS from denying an immigrant visa petition based on a different, if similarly
phrased, standard. In publishing the proposed rule, legacy INS specifically distinguished the 0-1 nonimmigrant
category from the high standard set for the immigrant visa extraordinary ability category. See 56 Fed. Reg.
30703,30704 (July 5, 1991).
The AAO is not required to approve applications or petitions where eligibility has not been demonstrated, merely
because of prior approvals that may have been erroneous. See e.g. Matter of Church Scientology International,
19I&N Dec. 593, 597 (Comm. 1988). It would be absurd to suggest that CIS or any agency must treat
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 (6th Cir.
1987), cert. denied, 485 U.S. 1008 (1988).
Furthermore, the AAO's authority over the service centers is comparable to the relationship between a court of
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions on behalf
of the beneficiary, the AAO would not be bound to follow the contradictory decision of a service center.
Louisiana Philharmonic Orchestra v. INS, 2000 WL 282785 (E.D. La.), affd, 248 F.3d 1139 (5th Cir. 2001),
cert. denied, 122 S.Ct. 51 (2001).
As stated previously, the director also determined the petitioner had not submitted clear evidence that she
would continue work in her area of expertise in the United States. The director's decision stated:
Part 6 of the petition listed the petitioner's proposed occupation as Synchronized Swimming
Specialist, which was described as "Trains for and participates in professional competitive
athletic events involving synchronized swimming." This suggests that the petitioner would
continue as a competitive performer. However, several of the letters provided indicate that the
petitioner has "retired" from competing and is currently coaching, and the documentation
provided indicates that she is currently acting as an assistant coach for the AquaSprites swim
team. None of the documentation provided addresses any claimed extraordinary ability as a
coach, and the record lacks documentation indicating that she would be primarily acting as an
athlete as opposed to a coach.
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We agree with the director that the petitioner's evidence is not adequate to demonstrate her extraordinary
ability as a coach.4 However, the record adequately demonstrates that the petitioner has continued work in
synchronized swimming as both a competitor and an assistant coach for the AquaSprites in recent years. As
the evidence of record shows that the petitioner is still active as a competitor, it is reasonable to conclude that
her area of expertise includes both competition and coaching.5 The regulation at 8 C.F.R. § 204.5(h)(5)
requires "clear evidence that the alien is coming to the United States to continue work in the area of expertise.
Such evidence may include letter(s) from prospective employer(s), evidence of prearranged commitments
such as contracts, or a statement from the beneficiary detailing plans on how he or she intends to continue his
or her work in the United States." The petitioner's initial submission included a January 6, 2002 letter from
Head Coach of the AquaSprites, discussing the petitioner's work for the team. In re~
the director's request for evidence, the petitioner submitted correspondence from her agent, ~
~ated February 1,2003 and June 7, 2006 discussing her plans for work in the United States. The
petitioner also submitted a draft contract and itinerary for the period of September 10, 2005 through
September 9, 2008. We find that the preceding documentation is adequate to demonstrate the petitioner
intends to continue work in her area of expertise in the United States. Therefore, we withdraw the director's
finding on this issue.
Nevertheless, review of the record does not establish that the petitioner has distinguished herself to such an
extent that she may be said to have achieved sustained national or international acclaim or to be within the
small percentage at the very top of her field. The evidence is not persuasive that the petitioner's
achievements set her significantly above almost all others in her field at a national or international level.
Therefore, the petitioner has not established eligibility pursuant to section 203(b)(I)(A) of the Act and the
petition may not be approved.
The burden of proof in visa petition proceedings remains entirely with the petitioner. Section 291 of the Act,
8 U.S.c. § 1361. Here, the petitioner has not sustained that burden. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
4 The petitioner has not established that her coaching achievements meet any of the regulatory criteria at
8 C.F.R. § 204.5(h)(3).
S The record includes published material, an athlete's identification badge, photographs, awards, and letters of
support from Bruce Wigo and Ttny lImpef reflecting the petitioner's involvement in various Masters
competitions from 2003 to 2005.
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